HM Insights

Prescriptive claims on land – filling the missing piece of a title

There is nothing more frustrating to a client than to hear that they do not have title to all they believe they should. A difficult conversation is to be had to explain that while they may have used the land for as long as they can remember, they don’t in fact own it and fixing the issue could cost thousands with potentially no certainty that they will reach the outcome they desire.

Where your client has no title and there is no argument to be had for rectification then there are three options to be had: corrective conveyance, a prescriptive claim or to obtain a title indemnity policy. The below table summarises the pros and cons of each option:

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Method

Pros

Cons

Corrective Conveyancing

-       Fixes the problem

-       Client gets good title and therefore easy to transact on

-       Relatively quick (depending on the parties)

-       Relatively low legal costs

-       Potential for rightful owner to request a high consideration

-       Alert neighbour to land they did not know they owned and they look to reclaim possession of the land.

Prescriptive Claim

-       Fixes the problem

-       Client will (after 10 years from registration) get good title which they can transact on easily

-       No consideration for the land

-       Potentially long process

-       Legal costs can easily rise

-       Required to alert any potential owners and they can object and may look to reclaim possession of the land

-       Uncertainty as to whether the Keeper will accept the level of evidence submitted and the application for registration.

-       The Keeper will mark the title as provisional for 10 years which may cause issues when transacting on.

-       No certainty that an application has been accepted until a title sheet is issued and this can take years.

Title Indemnity Policy

-       Cheapest option

-       Quickest option

-       Allows the client to transact on property that you would not be able to otherwise transact on.

-       Does not fix the problem

-       Risk that the rightful owner will become aware at some point that they own the land and look to reclaim possession of the land.

-       No ability to try to fix the problem in the future.

The process of a prescriptive claim

When the client is adamant that they want the area to be within their legal title, sometimes there is no other option that to proceed with a prescriptive claim. The first step is evidencing a year’s possession. This will involve, among other things, photographic evidence and affidavits from neighbours or people who have knowledge of the property over the years. The level of evidence required by the Keeper is high, for instance she may request affidavits from all neighbouring proprietors.

Evidence also must be gathered to show that you have researched the rightful owner of the property, that search sheets have been reviewed, legal reports obtained and sasine deeds consulted. The ownership search will decide who the notifications are to be sent to. The 2012 Act details who needs to be notified:

  • The proprietor;
  • If there is no proprietor (or none can be identified), any person who appears to be able to take steps to complete title as proprietor; or
  • If there is no proprietor and no such person (or, in either case, non can be identified) the Crown.

If the owner is no longer capable of being an owner then evidence of that is also required, for instance, screen shots from Companies House confirming that a company has dissolved. If the company is still in existence then evidence of this is equally required.  If the owner is now deceased, a death certificate. In deed if the Keeper conversely may require evidence that the "owner" is still alive, be that searches in the electoral roll, contact with the last known solicitor to have acted, searches of other local authority registers and even local newspaper advertisements.

Notifications must be in the prescribed form detailed in Schedule 2 of the Land Registration Rules and must be sent out at least 60 days before submission of the application. On the expiry of the 60 days have expired then the application can be submitted to Registers of Scotland. The keeper will then send out her own notifications (giving a further 60 days for objection).

The application itself still requires a non domino disposition to be granted to the claimant and the application is on the back of this deed.

Once you have a successful application and the title sheet is returned, the keeper will mark the title as provisional. Once prescription has run for the full 10 years following registration, the owner may choose to apply to the Keeper to have that removed by providing evidence and this would be done through the rectification process to remove the provisional marking from the title.

Get in touch – we’re here to help

Prescriptive claims are an involved process with uncertainty surrounding the outcome however do have the potential to provide a solution to an otherwise impossible situation. Whether it is worth the risk will be a question of how much the land is worth to the person looking to establish title.

 

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